A. Location Of Facilities: All facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a license or franchise agreement:
1. A grantee shall install its telecommunications facilities within an existing underground duct or conduit whenever excess capacity exists within such utility facility.
2. A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available. All tree trimming necessary for overhead line clearance shall be performed under the direction of an arborist certified by the International Society of Arboriculture.
3. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the Village, a grantee with permission to occupy the same public way must also locate its telecommunications facilities underground.
4. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the Village, a grantee that currently occupies the same public way shall relocate its facilities underground within a reasonable period of time, which shall not be later than the end of the grant term. Absent extraordinary circumstances or undue hardship as determined by an engineer employed by the Village, such relocation shall be made concurrently to minimize the disruption of the public ways.
5. Whenever new telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future telecommunications carriers or facilities, the grantee shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future carriers.
B. Compliance With JULIE: All license or franchise grantees shall, before commencing any construction in the public ways, comply with all regulations of JULIE.
C. Construction Permits: All license or franchise grantees are required to obtain construction permits for telecommunications facilities as required in Section 8-8-10 of this Chapter. However, nothing in this Section shall prohibit the Village and a grantee from agreeing to alternative plan review, permit and construction procedures in a license or franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
D. Interference With The Public Ways: No license or franchise grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the Village, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, temporarily or permanently, as determined by the Village Engineer.
E. Damage To Property: No license or franchise grantee nor any person acting on a grantee's behalf shall take any action or permit any action to be done which may impair or damage any Village property, public ways of the Village, other ways or other property located in, on or adjacent thereto.
F. Notice Of Work: Unless otherwise provided in a license or franchise agreement, no license or franchise grantee, nor any person acting on the grantee's behalf, shall commence any nonemergency work in or about the public ways of the Village or other ways without ten (10) working days' advanced notice to the Village.
G. Repair And Emergency Work: In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the Village as promptly as possible, before such repair or emergency work or as soon thereafter as possible, if advance notice is not practicable.
H. Maintenance Of Facilities: Each license or franchise grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Federal, State and local requirements.
I. Relocation Or Removal Of Facilities: Within thirty (30) days following written notice from the Village, a license or franchise grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the corporate authorities shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
1. The construction, repair, maintenance or installation of any Village or other public improvement in or upon the public ways.
2. The operations of the Village or other governmental entity in or upon the public ways.
J. Removal Of Unauthorized Facilities: Within thirty (30) days following written notice from the Village, any grantee, telecommunications carrier or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways of the Village shall, at its own expense, remove such facilities or appurtenances from the public ways of the Village. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:
1. Upon expiration or termination of the grantee's telecommunications license or franchise.
2. Upon abandonment of a facility within the public ways of the Village.
3. If the system or facility was constructed or installed without the prior grant of a telecommunications license or franchise.
4. If the system or facility was constructed or installed without the prior issuance of a required construction permit.
5. If the system or facility was constructed or installed at a location not permitted by the grantee's telecommunications license or franchise.
K. Emergency Removal Or Relocation Of Facilities: The Village retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the Village, as the Village may determine to be necessary, appropriate or useful in response to any public health or safety emergency.
L. Damage To Grantee's Facilities: Unless directly and proximately caused by the wilful, intentional or malicious acts by the Village, the Village shall not be liable for any damage to or loss of any telecommunications facility within the public ways of the Village as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling or work of any kind in the public ways by or on behalf of the Village.
M. Restoration Of Public Ways, Other Ways And Village Property:
1. When a license or franchise grantee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or Village property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed by the Village.
2. If weather or other conditions do not permit the complete restoration required by this Section, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the licensee's sole expense and the licensee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
3. A grantee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property.
4. All open excavations necessary for the installation of underground facilities shall be properly backfilled. Under hard surface areas, such as roadways, sidewalks and drives, trench backfill shall be compacted and certified to Village construction code standards. Under unpaved right of way and other natural surfaced areas, backfill material shall be compacted in six inch (6") lifts with the final six inch (6") lift being suitable topsoil.
N. Facilities Maps: Each license or franchise grantee shall provide the Village with an accurate map or maps certifying the location of all telecommunications facilities within the public ways. Each grantee shall provide updated maps annually.
O. Duty To Provide Information: Within ten (10) days of a written request from the Village Manager, each license or franchise grantee shall furnish the Village with information sufficient to demonstrate:
1. That grantee has complied with all requirements of this Chapter.
2. That all Municipal sales, message and/or telecommunications taxes due the Village in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee 1 .
3. All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public ways shall be made available for inspection by the Village at reasonable times and intervals.
P. Leased Capacity: A license or franchise grantee shall have the right, without prior Village approval, to offer or provide capacity or bandwidth to its customers; provided:
1. Grantee shall furnish the Village with a copy of any such lease or agreement.
2. The customer or lessee has complied, to the extent applicable, with the requirements of this Chapter.
Q. Grantee Insurance: Unless otherwise provided in a license or franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the Village and its elected and appointed officers, officials, agents and employees as coinsureds:
1. Comprehensive general liability insurance with limits not less than:
a. Five million dollars ($5,000,000.00) for bodily injury or death to each person;
b. Five million dollars ($5,000,000.00) for property damage resulting from any one accident; and,
c. Five million dollars ($5,000,000.00) for all other types of liability.
2. Automobile liability for owned, nonowned and hired vehicles with a limit of three million dollars ($3,000,000.00) for each person and three million dollars ($3,000,000.00) for each accident.
3. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than one million dollars ($1,000,000.00).
4. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000.00).
5. The liability insurance policies required by this subsection shall be maintained by the grantee throughout the term of the telecommunications license or franchise and such other period of time during which the grantee is operating without a franchise or license hereunder or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety (90) days after receipt by the Village, by registered mail, of a written notice addressed to the Village Manager of such intent to cancel or not to renew.
6. Within sixty (60) days after receipt by the Village of said notice, and in no event later than thirty (30) days prior to said cancellation, the grantee shall obtain and furnish to the Village replacement insurance policies meeting the requirements of this subsection.
R. General Indemnification: Each license or franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to defend, indemnify and hold the Village and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Chapter or by a grant agreement made or entered into pursuant to this Chapter.
S. Performance And Construction Surety: Before a license or franchise granted pursuant to this Chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the Village as may be required by this Chapter or by an applicable license or franchise agreement.
T. Security Fund: Each grantee shall establish a permanent security fund with the Village by depositing the amount of fifty thousand dollars ($50,000.00) with the Village in cash, an unconditional letter of credit or other instrument acceptable to the Village, which fund shall be maintained at the sole expense of grantee so long as any of grantee's telecommunications facilities are located within the public ways of the Village.
1. The fund shall serve as security for the full and complete performance of this Chapter, including any costs, expenses, damages or loss the Village pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the Village.
2. Before any sums are withdrawn from the security fund, the Village shall give written notice to the grantee:
a. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the Village has incurred by reason of grantee's act or default.
b. Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure, if applicable.
c. Providing a reasonable opportunity for grantee to pay any monies due the Village before the Village withdraws the amount thereof from the security fund, if applicable.
d. That the grantee will be given an opportunity to review the act, default or failure described in the notice with the Village Manager or his designee.
3. Grantees shall replenish the security fund within fourteen (14) days after written notice from the Village that there is a deficiency in the amount of the fund.
U. Construction And Completion Bond: Unless otherwise provided in a license or franchise agreement, a performance bond written by a corporate surety acceptable to the Village equal to at least one hundred percent (100%) of the estimated cost of constructing grantee's telecommunications facilities within the public ways of the Village shall be deposited before construction is commenced.
1. The construction bond shall remain in force until sixty (60) days after substantial completion of the work, as determined by an engineer employed by the Village, including restoration of public ways and other property affected by the construction.
2. The construction bond shall guarantee, to the satisfaction of the Village:
a. Timely completion of construction.
b. Construction in compliance with applicable plans, permits, technical codes and standards.
c. Proper location of the facilities as specified by the Village.
d. Restoration of the public ways and other property affected by the construction.
e. The submission of as-built drawings after completion of the work as required by this Chapter.
f. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
V. Coordination Of Construction Activities: All grantees are required to cooperate with the Village and with each other.
1. By February 1 of each year, grantees shall provide the Village with a schedule of their proposed construction activities in, around or that may affect the public ways.
2. Each grantee shall meet with the Village, other grantees and users of the public ways annually or as determined by the Village to schedule and coordinate construction in the public ways.
3. All construction locations, activities and schedules shall be coordinated, as ordered by an engineer employed by the Village, to minimize public inconvenience, disruption or damages.
W. Transfer And Assignment:
1. Except in the event of the merger, consolidation or reorganization of a licensee or franchisee, the licensee or franchisee shall not have the right to assign its rights and privileges under this Chapter or to otherwise transfer them in any manner whatsoever, without the prior written approval of the Village, pursuant to an ordinance enacted by the corporate authorities.
2. In the event of a transfer or assignment of the rights and privileges of the licensee or franchisee under this Chapter, all provisions of this Chapter which are obligatory upon, or which inure to the benefit of a licensee or franchisee shall also be obligatory upon and shall inure to the benefit of any and all successors and assigns of the licensee or franchisee.
X. Transactions Affecting Control Of Grant: Any transactions which singularly or collectively result in a change of ten percent (10%) or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of grantee's telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring Village approval pursuant to subsection W hereof. Transactions between affiliated entities are not exempt from Village approval.
Y. Revocation Or Termination Of Grant: A license or franchise granted by the Village to use or occupy public ways of the Village may be revoked for the following reasons:
1. Construction or operation in the Village or in the public ways of the Village without a license or franchise grant of authorization.
2. Construction or operation at an unauthorized location.
3. Unauthorized substantial transfer of control of the grantee.
4. Unauthorized assignment of a license or franchise.
5. Unauthorized sale, assignment or transfer of grantee's franchise or license assets, or a substantial interest therein.
6. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the Village.
7. Abandonment of telecommunications facilities in the public ways.
8. Failure to relocate or remove facilities as required in this Chapter.
9. Failure to pay taxes, compensation, fees or costs when and as due the Village.
10. Insolvency or bankruptcy of the grantee.
11. Violation of material provisions of this Chapter.
12. Violation of the material terms of a license or franchise agreement.
Z. Notice And Duty To Cure: In the event that the Village Manager believes that grounds exist for revocation of a license or franchise, he shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding thirty (30) days to furnish evidence:
1. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
2. That rebuts the alleged violation or noncompliance.
3. That it would be in the public interest to impose some penalty or sanction less than revocation.
AA. Hearing: In the event that a grantee fails to provide evidence reasonably satisfactory to the Village Manager as provided in subsection BB hereof, the Manager shall refer the apparent violation or noncompliance to the corporate authorities. The corporate authorities shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
BB. Standards For Revocation Or Lesser Sanctions: If persuaded that the grantee has violated or failed to comply with material provisions of this Chapter, or of a franchise or license agreement, the corporate authorities shall determine whether to revoke the license or franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
1. Whether the misconduct was egregious.
2. Whether substantial harm resulted.
3. Whether the violation was intentional.
4. Whether there is a history of prior violations of the same or other requirements.
5. Whether there is a history of overall compliance.
6. Whether the violation was voluntarily disclosed, admitted or cured. (1997 Code)
Notes
| 1 | 1. See Title 3, Chapter 2 of this Code. |